Document Type

Article

Publication Date

2003

Abstract

THE CIVIL JURY trial is fast disappearing from our legal landscape, and one important reason for its disappearance is the rapid growth of mandatory arbitration. Yet, the imposition of mandatory arbitration eliminates the civil jury, and often this elimination is not made through a knowing, voluntary, or intelligent waiver. As I have argued elsewhere in greater detail, unless federal courts are generally willing to abandon the Seventh Amendment "knowing/voluntary/intelligent" civil jury trial waiver standard, they need to significantly revise their approach to mandatory arbitration clauses. If a given state allows the civil jury trial right to be waived through a contract of adhesion, even if the waiver is not knowing, voluntary, or intelligent, then that same standard should be applied to arbitration clauses. To the extent that the particular jurisdiction applies some version of the "knowing, voluntary, intelligent" test to determine whether the jury trial right has been waived, then that precise test should be applied to the arbitration clause. Companies' imposition of mandatory arbitration against consumers, employees, and others now threatens the jury trial right to the extent that courts fail to apply the traditional jury trial waiver to mandatory arbitration provisions.

Publication Citation

38 U.S.F.L. Rev. 17 (2003).